Khadr defence to file motion to dismiss

The sputtering saga that is Omar Khadr's military trial starts up once again today, this time with defence lawyers attempting to persuade a judge to throw out the entire case because the detained Canadian was still a child at the time of his alleged crimes.

The motion echoes the sentiments of myriad human-rights groups, which have expressed outrage at Mr. Khadr's trial and repeatedly, though unsuccessfully, called on Canada to bring its citizen home.

Amid the incongruous mix of lush tropical beauty and near-endless barbed wire that mark this U.S. naval base at the southeastern end of Cuba, Mr. Khadr's defence team will present a flurry of motions before the U.S. military tribunal hearing Mr. Khadr's case. One of those motions asks for all charges against the 21-year-old to be dismissed because of lack of jurisdiction.

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Mr. Khadr's lead defence lawyer, U.S. Navy Lieutenant-Commander William Kuebler, argues in the motion that the U.S. Military Commissions Act has no jurisdiction because Mr. Khadr was only 15 when he allegedly tossed a grenade during an Afghanistan firefight, killing a U.S. Special Forces commando. Mr. Khadr faces five charges, including murder. If convicted, he could face life in prison.

"If jurisdiction is exercised over Mr. Khadr, the military judge will be the first in Western history to preside over the trial of alleged war crimes committed by a child," LCdr. Kuebler argues in the motion.

"The reason minors are incapable of obtaining a military status, even voluntarily, is as based in common sense as it is military history."

While the motion to dismiss may be seen as a long shot, Mr. Khadr's controversial trial has had no shortage of surprises so far. Last summer, a military court essentially dismissed all charges against Mr. Khadr over a jurisdictional issue. That decision was overturned, however, and in the fall of 2007 Mr. Khadr's trial finally began in earnest, five years after he first came to Guantanamo Bay.

It is the process of the trial itself - seen by many as a political rather than legal endeavour - that has prompted criticism from lawyers' organizations and human-rights groups, both in Canada and internationally.

Last week, Unicef joined the growing chorus of groups calling for an end to Mr. Khadr's current trial.

"As an organization that works actively to prevent unlawful recruitment, to facilitate reintegration of child soldiers, and to promote due process, UNICEF is concerned that such a prosecution, in particular in front of a military commission not equipped to meet the required standards, would set a dangerous precedent for the protection of hundreds of thousands of children who find themselves unwittingly involved in conflict around the world," the group said in a statement.

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Earlier this year, Human Rights Watch, Amnesty International, the Coalition to Stop the Use of Child Soldiers and Human Rights First sent a letter to Prime Minister Stephen Harper to formally request that the United States either try Mr. Khadr under juvenile justice rules or send him back to Canada.

Mr. Khadr is the only Westerner still held in Guantanamo Bay, and the U.S. administration has previously indicated that even his acquittal in a military court may not necessarily mean he would be released.

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